Can a person withdraw consent to test their blood after it’s been drawn? SCOW will decide.

Was Randall entitled to suppression of the results of a test of a blood sample that she voluntarily gave to police under the implied consent law because she informed the lab that she was withdrawing her consent before the lab had analyzed the blood to determine the presence and quantity of drugs and alcohol?

We’ve seen a lot of developments lately in the Fourth Amendment law around OWI blood draws: exigency (McNeely), search incident to arrest (Birchfield), and consent, express or implied (Birchfield again, followed by the Wisconsin court’s non-decision decision in Mitchell). Here we have kind of a sub-issue regarding consent: consent to what? If the person has consented to having their blood taken, and it’s taken, is the search over? Or does the search last through the actual testing of the blood, days or weeks or months later? And if it’s the latter, it’s black-letter search and seizure law that consent can be revoked–so shouldn’t a person be able to withdraw their consent between the taking and the testing, such that a warrant would be required for the actual test?

The court of appeals has given two different answers in two unpublished (though citable) cases. First, in State v. Sumnicht, the court held that

the search ended upon the blood being drawn. From that point on, the evidence was lawfully seized, and the subsequent examination of seized evidence is part and parcel of the lawful search and seizure.

Six months later, though, in this case, a different judge of the same court said

there is one continuous search that begins with the taking of blood and continues through the testing of that blood.

and upheld the suppression of the (warrantless) alcohol test of Randall’s blood, after her lawyer had sent a letter to the state hygiene lab unequivocally revoking her consent.

Consent is always, contemporaneously, revocable. But items of evidence that are seized, before the denial of contemporaneous consent, can still be analyzed by investigators to find probable cause for a WARRANT TO ISSUE to continue the search. Good luck! with THIS Supreme Court to change precedent of this magnitude.

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